Doctors’ Unethical Blacklisting Taunts Law’s Due Process

Ann Sproull was quite indignant as she faced the press recently in Flint, Michigan. Out of her grief over medical malpractice affecting her child, she helped form Michigan Citizens Against Incompetent Medicine (MAIM), and became its president. Now she is exposing what she calls a “blacklisting, and intimidation tactic.”
She was referring to a move by the Genesee County Medical Society to publish the names of people who sue doctors along with the attorneys representing them. The purpose is to give local physicians the option of not providing services or treatment to people on the-list.

Dr. Robert E. James, Jr., president of the medical society, told a reporter that the list is “a form of risk management.” The doctor who suggested the idea, Larry L. Pack, was more candid: “Maybe it is repugnant,” he said, “but it’s a free country and we’re not telling anyone what to do… This is not for the patient’s benefit, it’s for the doctor’s.”

“I’m afraid that medicine has become more of a business and less of a passion. So, consequently, it makes good business sense to know where your liability lies and how to avoid it,” Pack said.

Dr. Lewin Wyatt, president of the county osteopathic association, was a bit more reflective, saying: “I think most doctors would be interested if such a list was developed, at least out of curiosity. But from an ethical basis, I’d have problems with it.”

Ann Sproull has problems with it, all right. “What is next?,” she asked. “Will reporters be blacklisted for reporting the truth about malpractice cases or incompetent physicians?

-Will doctors refuse to treat judges who have ruled against another physician in a malpractice case, or a legislator who casts an unfavorable vote? Where does this end?”

Doctors know that a small minority of physicians are responsible for a large proportion of malpractice verdicts and settlements. A recent study, commissioned by the Pennsylvania Medical Society, showed that one percent of physicians in that state are responsible for 25 percent of all malpractice loss payments by the Pennsylvania Medical Professional Liability Catastrophe Loss Fund. Studies in Michigan, Florida, and other states show similar proportions.

In a speech to the American College of Obstetrics and Gynecology, Dr. Barry Shifrin declared: “The greatest cause of malpractice is malpractice. You must understand that some of the malpractice out there is so grievous, offensive and implausible as to beggar the imagination. Without real malpractice, we would not have this problem.”

So, should there be a brain-damaged infant due to malpractice in Genesee County, his or her name, and the names of the parents, will be placed on this list so doctors can decide whether or not to refuse treatment. The list does not even indulge in distinguishing between serious and mistaken claims — a distinction that would reduce the grossness of the cruelty but still be a gross practice nonetheless.

Fortunately, Congress has moved to require that insurance companies paying malpractice claims refer the name of the physician and basis for the claim to state medical licensing boards and the Secretary of Health and Human Services. Health care facilities will also be required to supply information on adverse actions they take against a physician. The legislation is intended to encourage the location of repeat offenders and provide the data that the license review boards need to police the profession against harmful incompetence. At this writing, it is not known whether President Reagan will pocket veto or sign the Health Care Quality Improvement Act which includes this section.

Physicians should cooperate with licensing board efforts to remove from the profession doctors who are a disgrace to the profession. This is real risk management. And the bill on Mr. Reaaan’s desk will give such doctors protection from liability for exposing incompetent physicians unless the information was knowingly false.

What physicians should not be doing is compiling lists of victims who sought their lawful right to have their day in court.